How one official gained the unprecedented power to bypass federal law for border security

Countries & Cities · Published 10 October 2026 Swipe more like this →

In short: As Secretary of Homeland Security, Michael Chertoff utilized a sweeping waiver authority that allowed him to override dozens of environmental and cultural protection laws. This move, which bypassed regulations from the Clean Air Act to the Endangered Species Act, remains a landmark case of executive power in American governance.

Michael Chertoff, a former federal prosecutor and judge, served as the second United States Secretary of Homeland Security from 2005 to 2009. His tenure was marked by significant controversy, particularly regarding his use of waiver authority granted by Congress in 2005. This provision enabled the Secretary to waive any law deemed necessary for the construction of border fencing. In April 2008, Chertoff exercised this power to bypass a wide array of statutes, including the National Environmental Policy Act and the Migratory Bird Treaty Act, to expedite the extension of triple fencing near the Tijuana River National Estuarine Research Reserve.

The scope of this authority was described by the Congressional Research Service as unprecedented, noting that they could not identify any other provision in federal law that granted a secretary such broad, unchecked power to set aside existing legislation. While the Supreme Court declined to hear a constitutional challenge to this authority in June 2008, the actions drew sharp criticism from observers like the New York Times, which argued that the administration was sacrificing fragile habitats and legal protections to appease political interests. This episode highlighted the tension between national security mandates and established environmental and historic preservation frameworks.

Beyond his border policies, Chertoff’s career spanned decades of high-profile legal and government work. He co-authored the USA PATRIOT Act and served as a prosecutor in major cases involving organized crime and political corruption. After leaving the Obama administration in 2009, he founded the Chertoff Group, a risk-management firm. His transition into private consulting led to him being labeled a 'flexian' by researcher Janine R. Wedel, reflecting his movement between public service and the private sector. Today, he remains active in security policy, having co-authored works on cybersecurity and served in various advisory roles.

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